Summary
firing of shots established that defendant intended to kill victim
Summary of this case from Monserrate v. GreinerOpinion
September 29, 1994
Appeal from the Supreme Court, New York County (Richard T. Andrias, J.).
The jury's verdict was neither based on legally insufficient evidence, nor was it against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). Defendant's firing of numerous shots, the last of which hit the surviving victim in the stomach, accompanied by a simultaneous death threat, established that defendant intended to kill the surviving victim, and was thus guilty of both the attempted murder of the surviving victim and the "transferred intent" murder of the deceased. Although some of the shots may have gone wild, and may have been fired in a struggle between defendant and the surviving victim, the jury still had ample basis upon which to conclude that all the shots were fired under a single design to effect death. Likewise, the jury had a sufficient basis upon which to find that defendant's firing of numerous shots in a crowded nightclub evinced depraved indifference to human life while recklessly creating a grave risk of death to others (People v. Register, 60 N.Y.2d 270, 275, cert denied 466 U.S. 953).
The court properly exercised its discretion when it received evidence of defendant's possession of a firearm in the same club three months before the incident. This uncharged crime evidence, which was preceded by extensive proceedings under People v. Ventimiglia ( 52 N.Y.2d 350) and followed by suitable limiting instructions, was particularly probative because it tended to refute a defense claim (see, People v. Hernandez, 139 A.D.2d 472, 476-477, lv denied 72 N.Y.2d 957) that defendant had no way of smuggling a firearm into the club past its security guards (see also, People v. Del Vermo, 192 N.Y. 470, 478-481).
Evidence of a telephone threat was properly admitted. Although the witness was unfamiliar with defendant's voice, the circumstances made it highly likely that the call was made by defendant, and not an impostor or similarly-named person (People v. Lynes, 49 N.Y.2d 286, 291-293).
Defendant's remaining contentions are without merit.
Concur — Sullivan, J.P., Carro, Kupferman, Nardelli and Tom, JJ.